Chapter 10: Land-Based Torts Flashcards
- Introduction to torts relating to land
The torts to be considered under this general heading are:
(a) Private nuisance;
(b) Public nuisance;
(c) The rule in Rylands v Fletcher; and
(d) Trespass to land.
You will find that questions
in this area often require you to compare and contrast the operation and usefulness of each of
these land-based torts.
- Introduction to private nuisance
Private nuisance is the most significant land-based tort. The basis of a private nuisance claim is
the use of one’s land that causes an interference with the use or enjoyment of another’s land.
A number of basic definitions and themes we consider in relation to private nuisance will also be
relevant when we look at Rylands v Fletcher. However, public nuisance and trespass to land are
very different from the other two torts.
Private nuisance: Any continuous activity or state of affairs causing a substantial and unreasonable interference with a claimant’s land or their use or enjoyment of that land.
2.1 Private nuisance preliminaries
Prior to learning about the elements that make up private nuisance, two preliminaries must be
considered first:
(a) Who can sue in private nuisance?
(b) Who can be sued in private nuisance?
2.1.1 Who can sue in private nuisance?
In order to bring an action in private nuisance, the claimant must have a legal interest in the land,
namely a possessionary or proprietary interest (eg freehold or leasehold). Mere permission to use or occupy land is insufficient. The logical basis for this requirement is that a claim in nuisance arises from interference with one’s land.
Key case: Hunter and Others v Canary Wharf Ltd [1997] AC 655
In Hunter and Others v Canary Wharf Ltd [1997] AC 655, around 700 claimants’ TV reception had
been interfered with as a result of a tower constructed in Canary Wharf. Several of the claimants’
claims in private nuisance failed as they had no legal interest in the land affected; for example, they were family members living with the homeowner. An action in private nuisance could only be brought by those with a legal interest in the land affected ie the owner, tenant in possession, grantees of an easement or licensee with exclusive possession
2.1.2 Who can be sued in private nuisance?
The following can be sued in the tort of private nuisance:
(a) Creator of the nuisance;
(b) Occupier of the land from which the nuisance originates; and
(c) Owner of the land.
Creator: The creator of the nuisance can be sued even though they may not be in a position to end the
nuisance and even though they may not be the occupier of the land.
Occupier: The usual defendant is the occupier of the land from where the nuisance has come. They can be
liable for nuisances created by themselves as well as those created by others. An occupier will not
normally be liable for nuisances caused by others but may be held liable in the circumstances set
out in the table below.
Creator of Nuisance: Independent contractors
In Matania v National Provincial Bank [1936] 2 All ER 63, an
occupier was liable for the foreseeable excessive noise and dust
caused by contractors altering his property. Building work does
not normally form the basis of a private nuisance claim but in
Matania the temporary interference (three months) had serious
consequences for the claimant, a music teacher, who could not
earn his living whilst the contractors altered the property. If an
occupier asks an independent contractor onto their land to
perform certain tasks and those tasks cause an inevitable
nuisance, there will be liability.
Creator of Nuisance: Trespassers/ visitors/ predecessors in title
The occupier will be liable if they continued or adopted the
nuisance. In Sedleigh-Denfield v O’Callaghan [1940] AC 880 the
defendant was liable for a nuisance created by a trespasser. A
water pipe had been unlawfully put under the defendant’s land
by the local authority.
The pipe got blocked and water flooded the claimant’s land. The defendant had used the poorly
maintained pipe and was therefore liable. Occupiers continue a nuisance if they knew or ought reasonably
to know of its existence and fail to take reasonable steps to end it.
Occupiers adopt a nuisance if they make use of the thing causing
the nuisance.
Naturally occurring
nuisances
An occupier may be liable for naturally occurring nuisances. In
the Australian case of Goldman v Hargrave [1967] 1 AC 645 the Privy Council held an occupier liable for a naturally occurring nuisance where they knew or ought to have known of a danger and failed to take reasonable steps to abate the nuisance ie continued the nuisance.
Lightning struck a tree on the defendant’s land, starting a fire.
The defendant extinguished the fire but did not douse the embers.
The wind reignited the fire causing damage to the claimant’s land. The defendant was liable; he had the physical and financial ability to spray water over the embers and therefore should have taken these reasonable steps to abate the nuisance
Owner (landlord)
Key case: Coventry v Lawrence [2014] UKSC 46
A landlord will not usually be liable for a private nuisance unless the exception in Coventry applies
(highlighted in bold below).
In Coventry v Lawrence [2014] UKSC 46, the claimants moved into a bungalow less than one kilometre from the defendant’s noisy motor-sports stadium and track. The claimants sued the occupier and landlord.
The landlord was not liable. A landlord could only be liable for their tenant’s nuisance if they authorised it, by actively and directly participating in it, or by leasing the property in circumstances where there was a very high degree of probability that leasing the land would result in that nuisance being created.
The nuisance (the noise) was not an inevitable or virtual certainty of renting the premises. It was
not enough that the landlord knew how the tenants would use the premises; the premises could
have been used in that way without creating the nuisance. The landlord had not participated in
the nuisance. Whether a landlord has participated in a nuisance is a question of fact, mainly
dependent on events taking place after the granting of the lease.
2.2 Summary
- Private nuisance, public nuisance, the rule in Rylands v Fletcher and trespass to land are torts
relating to land. - Private nuisance is any continuous activity or state of affairs causing a substantial and unreasonable interference with a claimant’s land or their use or enjoyment of that land.
- The claimant must have a legal interest in the land affected in order to bring a claim in private
nuisance. - The claimant can sue the creator of the nuisance, the occupier of the land from where the nuisance emanates and/or the owner of the land from where the nuisance emanates
(including, under certain conditions, the landlord). - An occupier may be liable for nuisances created by third parties, including, under certain
conditions, independent contractors, predecessors in title, trespassers, visitors and for naturally occurring nuisances.
- Private nuisance elements
The purpose of private nuisance is to balance two competing interests (the right of the defendant
to do what they like on their land and the right of the claimant to enjoy their land without being
disturbed by the defendant’s activities): it is a ‘rule of give and take, live and let live’ (Bamford v Turnley (1862) 3 B&S 66).
Once you have considered the two preliminaries, the four elements of the tort of private nuisance
are:
(a) Indirect interference;
(b) Recognised damage;
(c) Continuous act; and
(d) Unlawful interference.
3.1 Indirect interference
Private nuisance concerns indirect interference with the use or enjoyment of the claimant’s land in contrast with direct interference which would be classified as trespass to land. Examples of indirect interference include sounds, smells, fumes and vibrations (ie intangible interference).
An indirect interference occurs where the nuisance starts on the defendant’s land but then causes damage to some aspect of the claimant’s use or enjoyment of their land. Indirect interference can include a failure to act which results in loss.
3.2 Recognised damage (loss)
The claimant must establish that they have suffered some damage. The types of damage recoverable in private nuisance are (St Helen’s Smelting Co v William Tipping (1865) 11 HL Cas
642):
(a) Physical damage to property (eg overhanging branches causing physical damage);
(b) Sensible personal discomfort (SPD). This is where the senses of the claimant are affected in such a way that the claimant is unable to enjoy their land eg unpleasant odours or noise. It can be defined as amenity damage, ie something which damages the amenity (enjoyment) value of the property, as opposed to its physical value
Reasonably Forseeable
The type of damage must have been reasonably foreseeable (Cambridge Water Company v Eastern Counties Leather [1994] 1 All ER 53) and the claimant can recover for any consequential losses flowing from recoverable damage, for example, loss of profits caused by the claimant’s
inability to use their land to make those profits.
A claimant cannot claim for personal injury given that private nuisance is a tort against land not the person (Hunter).
Any physical damage to property must be more than de minimus (trivial) (Mitchell v Darley Main Colliery [1886] App. Cas. 127). Any SPD must be more than fanciful and materially interfere with ordinary human comfort (Walter v Selfe (1851) 64 ER 849).
3.3 Continuous act & not a one-off event
The general rule is that the nuisance must be continuous. A one-off isolated event is not normally actionable in private nuisance. In such instances claims may be brought in negligence or, if it is possible, by means of an action in public nuisance or under the rule in Rylands v Fletcher.
Exceptions to this general rule.
(a) A single incident caused by an underlying state of affairs; and
(b) An activity which creates a state of affairs which gives rise to the risk of escape of
physically dangerous or damaging material.
Underlying state of affairs
In British Celanese v AH Hunt Ltd [1969] 1 WLR 959: Metal foil strips blown from the defendant’s factory came into contact with an electricity sub-station, causing a power failure which stopped
the claimant’s machines. The claimant alleged that the defendant knew or ought to have known of the likely consequences of the escape because a similar occurrence had taken place three years ago and the defendant had received a warning from the electricity board. The court held that this isolated incident could create a nuisance, especially as it was not the first occurrence. The persistent habit of storing the metal strips outside of the
factory provided the continuance.
State of affairs creating
risk of escape of
physically dangerous or
damaging material
In Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] 2
Lloyd’s Rep 533 the court reached a fact-sensitive decision,
when a firework display (and the resulting fire) was held (obiter) to
be a private nuisance (the claim succeeded in negligence). The
fire caused extensive property damage.
The court suggested that
where an activity creates a state of affairs which gives rise to the
risk of escape of physically dangerous or damaging material,
such as water, gas or fire, then private nuisance is available, even
if the state of affairs is brief in duration.
3.4 Unlawful interference
The nuisance must constitute an unlawful interference with the claimant’s land or use or
enjoyment of the land. The term ‘unlawful’ in this context denotes unreasonableness. The courts
will not look at whether the defendant is at fault in any way but whether the activity that is causing the nuisance amounts to an unreasonable use of land (Cambridge Water Company v
Eastern Counties Leather [1994] 1 All ER 53). If the use of land is reasonable, the defendant will not be liable; but if the use is unreasonable, the defendant will be liable, even if they exercised
reasonable care and skill to avoid it.
Sedleigh Denfield v O’Callaghan [1940] AC 880
The purpose of private nuisance is to balance two competing interests: the right of the defendant to do what they like on their land and the right of the claimant to enjoy their land without being disturbed by the defendant’s activities. Where there has been property damage, it will usually be
easily demonstrated that the claimant’s enjoyment of their land has been affected over and above what is reasonable, but not always.
Factors to determine whether the defendant’s interference with the claimant’s land is unreasonable/unlawful
The factors considered are:
(a) Time and duration
(b) Locality
(c) Abnormal sensitivity
(d) Malice
(e) defendant’s lack of care
(f) Excessive behaviour
3.4.1 Time and duration
Everyone has to put up with some interference from their neighbours at some time. However, if the
interference is frequent or for long periods of time, this may be deemed unreasonable. The longer the interference lasts, the more likely it will be deemed unreasonable.
Key case: Kennaway v Thompson [1981] QB 88
In Kennaway v Thompson [1981] QB 88, it was stated that it will be important to see when the alleged nuisance takes place, how long it continues and how frequently it is repeated. These were
important considerations in Kennaway in which a residential neighbour complained of the noise created by the defendant motorboat racing and water-skiing club. However, note that where the loss is property damage only, the court might find a nuisance even if caused by a temporary or
short-lived activity.
3.4.2 Locality
The second factor that the courts can consider is locality or character of the neighbourhood. However, this factor is only relevant where the loss is SPD, not where the loss is property damage.
Whether use of land is reasonable will depend, in part, on the character of the area.
Key case: Sturges v Bridgman (1879) 11 Ch D 852
In Sturges v Bridgman (1879) 11 Ch D 852 a doctor complained that his surgery was disturbed by
the noise and vibrations coming from the defendant’s premises used for manufacturing confectionery. The defendant’s business was held to be a nuisance in a residential area. Thesiger
LJ made the famous comment that: ‘what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’ ie what is reasonable in a residential area is different to what is
reasonable in an industrial/commercial area. Use of land which is acceptable within a city centre may not be so in the surrounding rural area
Adams v Ursell [1913] 1 Ch 269
Fumes caused by a fish and
chip shop were held to constitute a nuisance in a residential area. The judge, however, remarked
that this did not mean the defendant could not carry on their business in another more suitable
place. Just because a fish and chip shop was a nuisance in one place, does not mean it would be
in another place
Planning permission + Community Benefit: In Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343
a predominately residential area
became a commercial port following planning permission, which resulted in heavy traffic, noise and fumes on residential roads. At one point it was recorded that a lorry passed every 1.5 minutes in the early morning. Residents complained of interrupted sleep and general disturbance. The claim failed as planning permission had changed the nature of the locality to a wholly commercial area which was benefiting the community. The court considered the locality as it was after the planning permission was granted.
Wheeler v JJ Saunders Ltd [1996] Ch 18
The defendant had planning permission to build two new pig sheds. One shed was 11 metres from the claimant’s holiday cottages. Strong smells
emanated from the farm to the claimant’s property. Despite the planning permission, the Court of
Appeal held the defendant liable in private nuisance. The planning permission had not changed
the nature of the locality (it simply allowed the already existing pig farm to become bigger).
Key case: Coventry v Lawrence [2014] UKSC 13
Finally on locality and planning permission, this was discussed in the key case of Coventry v Lawrence [2014] UKSC 13. The defendant’s speedway stadium causing the nuisance to the
claimants had been built in 1975 with planning permission.
The Supreme Court effectively
confirmed Wheeler; the planning permission did not authorise the nuisance. The noise from the
stadium amounted to a nuisance given that the area was overwhelmingly rural. The court confirmed that planning permission does not determine private rights and therefore planning
permission is normally of no assistance to the defendant in private nuisance claims.
However, the court went on to say that
there will be occasions when the precise terms of the planning permission may have a bearing on
whether or not a nuisance exists (ie the terms can provide some evidence of un/reasonableness of
the use of land), and it might also have relevance to remedies.
3.4.3 Abnormal sensitivity
The third factor the court will consider is abnormal sensitivity. A claimant who is unusually sensitive (or has unusually sensitive property) cannot claim that activities that would not interfere
with the ordinary occupier are a nuisance, simply because they are a nuisance to them alone.
Key case: Robinson v Kilvert (1889) LR 41 Ch D 88
In Robinson v Kilvert (1889) LR 41 Ch D 88 the claimant operated a business in the same premises as the defendant which involved storing heat sensitive paper. The defendant carried on a manufacturing business in the cellar of the building. The heat emitted from the defendant’s premises damaged the claimant’s paper. The court held that the claimant’s paper was abnormally
sensitive and ordinary paper would have been unaffected. There was no nuisance and the defendant’s use of the land was reasonable.
Key case: McKinnon Industries v Walker [1951] 3 DLR 577
In McKinnon Industries v Walker [1951] 3 DLR 577 the claimant had a commercial florist and nursery. Part of the claimant’s business involved growing orchids, known for their sensitivity. The claimant sued the defendant in private nuisance as the defendant’s factory was emitting fumes
and smuts which deposited over his shrubs, trees, hedges and flowers causing them to die. The claimant recovered costs for replacing the orchids and for lost profits on the damaged orchids.
Network Rail Infrastructure Ltd v CJ Morris [2004] EWCA Civ
172.
Whilst Robinson was not overturned, it was disapproved of by the Court of Appeal. The claimant argued that a signalling system installed by the defendant (Network Rail), interfered with electric guitars being used in the claimant’s recording studio. The defendant argued that the use
of the studio was abnormally sensitive, in that the claimant was involved in an extraordinary commercial activity.
Doubt about abnormal sensitivity
The court doubted whether the concept of abnormal sensitivity still existed,
and thought such cases should be viewed in terms of foreseeability instead. If something or someone is abnormally sensitive, then arguably the loss is not foreseeable to the defendant. An activity on land can only be a nuisance if the defendant could reasonably foresee that it might be
a nuisance to someone else
3.4.4 Malice
A fourth factor the court will consider if relevant is malice. Private nuisance is concerned with balancing the defendant’s right to do as they wish with their land against the claimant’s right to
enjoy their land free from interference. A certain amount of conflict is inevitable and if the defendant can show a legitimate reason for what they have been doing, the court will be less
inclined to interfere with their activities.
Key case: Christie v Davey [1893] 1 Ch 316
In Christie v Davey [1893] 1 Ch 316 the parties lived next door to one another in a semi-detached house. Mrs Christie (the claimant) was a music teacher and throughout the day music pervaded
the defendant’s house. This irritated the defendant who responded by making noise himself; beating trays, shouting and hitting the wall when the music was playing.
3.4.5 Defendant’s lack of care
Key case: Andreae v Selfridge and Co Ltd [1938]
A fifth factor the courts will consider if relevant is where the defendant has shown lack of care;
this is likely to count in the claimant’s favour.
In Andreae v Selfridge and Co Ltd [1938] Ch 1 (CA), the defendant was undertaking extensive building work next to the claimant’s hotel causing the claimant loss of custom due to noise and dust. The claimant was successful. The court held that there will always be some disturbance when one party is undertaking building works next to another.
Provided these works are
reasonably carried on and all reasonable steps are taken to ensure that no undue inconvenience
is caused to the neighbours, whether from noise, dust or other reasons, the neighbours must put up with it. However, the defendant had not exercised reasonable care; its attitude was to work until someone complained and its own convenience prevailed over the neighbours’ convenience.
3.5 Summary
- The four elements that make up private nuisance are indirect interference, recognised
damage, a continuous act, and unlawful interference. - Indirect interference is a nuisance which starts on the defendant’s land but causes damage to the claimant’s use/enjoyment of their land.
- Physical damage to property and SPD are recognised losses in private nuisance (and any consequential losses flowing from recognised loss).
- A nuisance must be a continuous act, although there are two exceptions to this general rule.
- Unlawful interference means ‘unreasonable’ interference.
- The courts will balance various relevant factors in order to decide whether the defendant’s use
of land is reasonable or not. In doing so the courts are balancing the right of the defendant to do what they like with their land against the right of the claimant to enjoy their land. These
factors include time and duration, locality, abnormal sensitivity, malice, lack of care and excessive behaviour.
4 Private nuisance: Defences and remedies
4.1 Defences
The defendant can attempt to rely on the following defences in private nuisance:
(a) 20 years’ prescription;
(b) Statutory authority;
(c) Consent;
(d) Contributory negligence;
(e) Act of third party;
(f) Act of God; and
(g) Necessity
20 years’ prescription
4.1.1 20 years’ prescription
If the defendant’s activity has been an actionable nuisance for 20 years or more (ie a claimant
would have had grounds for bringing a claim against the defendant for that period) but no such
action has been taken, the defendant will have earned the right to continue to commit the
nuisance. Note it is the length of time that a claimant could have complained that is crucial, not
the length of time that the activity has been ongoing.
Coventry
The stadium was constructed in 1975 and the claimant moved into the nearby house in 2006. The defendant was unable to rely on the defence of prescription as it was not enough to show that the activity or noise had been carried on for 20 years. They had to establish that the activity had created a nuisance for 20 years or more and they had not done this.
The claimant’s predecessor only first formally complained of the defendant’s activities in 1992 (16 years before
proceedings were brought by the claimant). Even then the predecessor was described by his wife as over-sensitive to noise and there was no real evidence that the noise had amounted to a nuisance during the 1990s. Note that the 20 years does not have to be continuous.
4.1.2 Statutory authority
Where the defendant’s activity is being carried out on the basis of statutory authority (note planning permission is not statutory authority), they will escape liability if they have exercised all
due care and the nuisance is an inevitable consequence of the activity.
Example: Allen v Gulf Oil Refining Ltd [1981] 1 All ER 353
A private Act of Parliament provided for the expansion of an oil refinery in part of Wales. Residents complained of the noise and vibrations caused by the operation of the refinery. A majority in the House of Lords held that the refinery’s operations were authorised by statute and the nuisance was inevitable. This acted as a full
defence.
4.1.3 Consent
If the claimant specifically agrees to the defendant causing the nuisance, then that consent will be a defence. The defence may be available where the claimant, knowing of the danger to their
property, has (by word or deed) shown willingness to accept the risks.
Example of Consent by Defense
In Pwllbach Colliery v Woodman [1915] AC 63 the claimant consented to colliery activity but not to the specific disruption caused by the coal dust. The claimant must have specifically consented to
the activity causing the nuisance.
4.1.4 Contributory negligence
Trevett v Lee [1955] I WLR 113
The defendant’s house was not connected with a water main and
in times of drought, the defendant would lay a garden hosepipe across the road to enable water to be brought by a water supply on the other side of the road to their premises. The claimant saw the pipe, but failed to step over it, caught her heel in it, fell and injured her back. The court held that there was no nuisance. However, if the court had found a nuisance, they confirmed that the defendant would have been able to argue the defence of contributory negligence. Note that this case concerned public nuisance, but the same principle applies to private nuisance
4.1.5 Act of third party
Where the nuisance has been created by a third party for whom the defendant bears no responsibility, the defendant will not be liable, unless they adopt or continue the nuisance (Sedleigh-Denfield).
4.1.6 Act of God
Where the nuisance results from an act of God, the defendant will not be liable unless they adopt or continue the nuisance. In Nichols v Marsland (1876) 77 LR 2 ExD 1 the defendant’s artificial pools flooded and damaged the claimant’s property. The flooding was caused by a very unusual amount of rainfall which was wholly unexpected, so the defendant had a complete defence.
4.1.7 Necessity
The usual principles apply which are considered in the section ‘Necessity’ in the chapter on defences.
4.2 Ineffective defence: Moving to the nuisance
‘Moving to the nuisance’ is a factor which defendants have sought to argue, but without success. The defendant may try to argue that the claimant should not be able to complain about a nuisance which was present when the claimant moved to their property. However, this will not justify the commission of a nuisance.
